Is An Outside Trial Attorney An Independent Contractor ?

Generally speaking, it is the attorney, not the corporate client, who has the primary right to control the performance of the attorney's legal work on behalf of the client. Due to the highly skilled nature of the occupation and the attorney's position as officer of the court bound by rules of professional conduct and ethical standards, a trial attorney "is relatively free from control by the client in ordinary procedural matters" "even if this calls for overriding objections of the client." (1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, 271, p. 336.) Because counsel retained to conduct litigation in the courts are "not subject to the control and direction of their employer over the details and manner of their performance," they are viewed as independent contractors. ( Lynn v. Superior Court (1986) 180 Cal. App. 3d 346, 349 225 Cal. Rptr. 427; Worthington v. Unemployment Ins. Appeals Bd. (1976) 64 Cal. App. 3d 384, 387 134 Cal. Rptr. 507.) Moreover, an outside trial attorney is engaged in handling litigation as a distinct occupation, which has been said to be a highly skilled and "independent calling." (Associated Indem. Corp. v. Ind. Acc. Com. (1943) 56 Cal. App. 2d 804, 808 133 P.2d 698.) It is the expertise necessary to practice law which places the attorney, not the client, in the position to regulate the attorney's performance. And a corporate client cannot engage in litigation except as a party, and thus cannot be engaged in the occupation of litigation either as part of its regular business or in isolated instances. In fact, the skill and independence an attorney must exercise are the primary reasons that courts insist a corporation be represented by an attorney in litigation. (See Merco Constr. Engineers, Inc. v. Municipal Court, supra, 21 Cal. 3d at pp. 730-732, 147 Cal. Rptr. 631, 581 P.2d 636.) Also indicative of the independent contractor status of an outside trial attorney is the fact that the attorney employs his or her own assistants under the attorney's exclusive control and furnishes his or her own materials. the courthouse and the attorney's office are the primary workplaces, and the attorney's education and experience are his or her primary tools. In all of these respects, the nature of the role of an outside trial attorney is similar to that of other professionals, such as doctors and nurses, who are considered independent contractors of their clients. ( Moody v. Industrial Acc. Com. (1928) 204 Cal. 668, 671-672 269 P. 542, 60 A.L.R. 299.) That an outside trial attorney is an independent contractor is reflected in decisional law. "An attorney may act as an employee for his employer in carrying out nonlegal functions . . .; he may be the agent of his employer for business transactions . . . or for imputed knowledge . . .; but in his role as trial counsel, he is an independent contractor." (Merritt v. Reserve Ins. Co. (1973) 34 Cal. App. 3d 858, 881 110 Cal. Rptr. 511, citations omitted; Foster v. County of San Luis Obispo (1993) 14 Cal. App. 4th 668, 673 17 Cal. Rptr. 2d 730; Lynn v. Superior Court, supra, 180 Cal. App. 3d at p. 349; Worthington v. Unemployment Ins. Appeals Bd., supra, 64 Cal. App. 3d at p. 387.)